Lawrence, Lawrence & Stafford, of Rutland, and Ainsworth, Carlisle, Sullivan & Archibald, of Albany, N. Y., for appellants. Jasper G. Page, of Bristol, and Allen R. Sturtevant, of Middlebury, for appe!lees MILES, J. This case comes here on appeal from the finding of facts and award of the Commissioner of Industries. No question is made in the brief of the defendants but that Joseph Brown, the husband of Ella M. Brown, the plaintiff, was employed by the defendant Bristol Last Block Company at the time of his injury which resulted in his death, and that his employment included his team of two horses, and that the injury was the result of an accident. [1, 2] The statute under which this action is brought is as follows: "If a workman receives personal injury by accident arising out of and in the course of such employment, his employer or the insurance carrier shall pay compensation in the amounts and to the person or persons hereinafter specified." G. L. 5768. To recover under this statute it was necessary for the plaintiff to show, not only that the injury was the result of an accident, but that the accident arose out of and in the course of Brown's employment. Robinson v. State, 93 Conn. 49, 104 Atl. 491. The burden is upon the plaintiff to make out all these conditions. It is not enough that the injury arose in the course of the employment. It must also have arisen out of the employment. [3] It is not easy to give a definition of the phrase, “accident arising out of and in the course of such employment," that will apply to every case arising under the employers' liability act. In re McNicol 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306. It is enough now to say that an injury arises in the course of the employment when it arises within the period of the employment, at a place where the employe may reasonably be, and while he is reasonably fulfilling the duties of his employment; and an injury arises out of the employment when it occurs in the course of it, and as a proximate result of it. Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916E, 584; In re McNicol, supra: Jacquemin v. Turner et al. (Conn.) 103 Atl. 115; Rees v. Thomas, I. Q. B. 1015; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; State v. District Court, 129 Minn. 176, 151 N. W. 912. When an injury is a natural and necessary incident or consequence of the employment, though not foreseen or expected, it arises out of it. Larke v. Hancock Mutual Life Ins. Co., supra. A risk is incidental to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service. Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458. [4, 5] No question is raised in the case at bar but that Brown was in the employ of the Bristol Last Block Company on the day of the accident, and that the accident happened about the noon hour; that Brown had eaten his dinner; that for some unknown cause the horses ran away; that Brown tried to stop them; and that in trying to do so he was run over by them and killed. These principles, we think, bring this case within the doctrine stated in the cases cited above. The accident happened while Brown was doing the duty which he was employed to perform, and at a place where he had a right to be in the performance of that duty. The accident, we think, was received in the course of his employment. It is apparent to the rational mind, upon consideration of all the circumstances, that there was a causal connection between the conditions under which the work was required to be performed and the resulting injury. The agency which produced the injury was the instrumentality with which the workman's labors were performed and without which he would not have been injured. He may have been negligent in the use of that agency; but that does not defeat recovery. G. L. 5766. We think the facts, about which there is no dispute, clearly support the finding of the commissioner that the accident arose out of Brown's employment. The defendant excepted to the findings of the commissioner that there were marks upon the body of Brown apparently made by the hoofs of the horses, and that he was preparing the horses for the afternoon work, when they became frightened and ran away. But whether there was evidence tending to show those facts is of no importance, and we take no time in searching the transcript in respect to that matter. It is conceded that the horses ran over Brown and killed him. It is of no importance whether they ran over him when he was preparing them for work or when he was trying to stop them when they were running away. In either case he was performing a duty which he owed the master, and which was necessary to perform in order to enable him to proceed with the afternoon work. It is equally of no importance whether marks of the horses' hoofs were upon Brown's body; for no one disputed the fact that Brown was killed by the horses running over him, and whether it was done by the horses stepping upon his body or otherwise could not affect the result of this suit. The most of the evidence was devoted to the inquiry of whether the accident happened while Brown was resting at the noon hour, and while the horses were eating their feed, or just after and before work for the afternoon was resumed; the contention of the defendants being that the employment was suspended during that time. But this contention is not sound. This court has held in Ingram's. Adm'x v. Rutland R. R. Co, 89 Vt. 278, 95 Atl. 544, Ann. Cas. 1918A, 1191, that the circumstances may be such that the duty may cover the servant's trip across the premises to and from his working place, and the circumstances may be such that a servant may step aside to get a drink of water, may go into a building to get warm, may withdraw to answer a call of nature, may stop to talk with a fellow workman, may go to a convenient place to eat or wash or get fresh air, to hang up his coat, or even to rest, without forfeiting his. right as an employe. It is said in that case: "Such digressions and interruptions are to be expected, and, when reasonably necessary, are held to be within the contemplation of the parties when the contract of employment is entered into, and covered thereby. The relation is not in such cases interrupted, but continues." [6, 7] The defendants further argue that because there was no evidence tending to show that Brown was not resting or doing something else wholly unconnected with his employment at the time the horses started to run away that there was no evidence supporting the commissioner's ultimate finding. The applicants were not called upon to prove that negative and the appeal does not raise it.. If it were raised, we could not assume a fact not shown by the record to reverse the case. First National Bank of Montpelier v. Bertoli, 88 Vt. 421, 92 Atl. 970. In this connection some question is made that the horses were owned by Brown, and therefore what he did in trying to stop them was an act in his own interest, and not in the interest of his employer. But this position is not tenable to its full extent. The horses were hired by the employer, and for the time in which the accident happened, their services belonged to it, and the employer was materially interested in that service. [8] The act should have a liberal and reasonable construction. It is framed on broad principles for the protection of the workman. Relief under it is not based on the neglect of the employer or affected by acts of negligence on the part of the employe. It rests on the economic and humanitarian principle of compensation to the employe, at the expense of the business, or to his representatives for earning capacity destroyed by an accident in the course of, or connected with, his work. Waters v. William J. Taylor Co., 218 N. Y. 248, 112 N. E. 727, L. R. A. 1917A, 347. The award is affirmed, with costs. Let the result be certified to the Commissioner of Industries. RASI v. HOWARD MFG. CO. (No. 15565.) (Supreme Court of Washington. Jan. 19, 1920.) MASTER AND SERVANT-MINOR ILLEGALLY EMPLOYED IS A "WORKMAN," WITHIN WORKMEN'S COMPENSATION ACT. A female factory worker over 15 years of age, but not 16, thongh employed without the permit required by Rem. Code 1915, § 2447, was a "workman," within the Workmen's Compensation Act (section 6604-1), particularly in view of section 6604-9, so that her remedy for injuries was under the act, and not at common law. (For other cases, see Master and Servant, Dec. Dig. § 366.) (For other definitions, see Words and Phrases, First and Second Series, Workman.) Department 2. Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Action by Hilda Rasi against the Howard Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed, and action dismissed. R. D. Hill and S. H. Kelleran, both of Seattle, for appellant. MOUNT, J. This appeal is from a judgment in favor of the plaintiff in an action for personal injuries. The defendant has appealed. The principal and only question necessary for us to consider is whether the action may be sustained. The facts are as follows: The appellant is a corporation engaged in business in Seattle in the manufacture of woodenware. It has various power-driven machines, which are used in its factory. One of these machines is a sanding machine, for smoothing flat boards. The respondent was employed as an off-bearer upon this sanding machine. In some manner her left hand was caught between the rolls of this machine, and she lost the four fingers of her left hand. Her injury occurred on July 3, 1918, when she had worked at this machine but a short time. At the time of her employment she was past 15 years of age, but not 16. She had no permit to work from a superior court judge of the county where she lived. The business of the appellant was within the terms of the Workingmen's Compensation Act (Rem. Code 1915, §§ 6604-1 to 6604-32), and appellant made regular returns and had complied with all the requirements of that law. After respondent's injury she brought this action at common law to recover on account of the alleged negligence. The appellant insists that the sole remedy of respondent is to be found in the terms of the Workingmen's Compenastion Act and that she has no redress by statute against her employer. This position must be sustained. The first section (Rem. Code, § 6604-1) of that act provides as follows: "The common-law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the workman and that little only at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wageworker. The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extrahazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided." In Ross v. Erickson Construction Co., 89 Wash. 634, 155 Pac. 153, L. R. A. 1916F, 319, after quoting from this section, we said: * * "The Legislature undertook to withdraw 'all phases of the premises from private controversy,' and provide 'sure and certain relief for workmen,' and to that end abolished 'all civil actions and civil causes of action for such personal injuries,' and abolished all jurisdiction of the courts over such cases, except as in the act provided. Clearly the purpose of the act was to end all litigation growing out of, incident to, or resulting from the primary injury, and, in lieu thereof, give to the workman one recovery in the way of certain compensation, and to make the charge upon the contributing industries alone. That purpose is made reasonably clear by reference to the act." See, also, Stertz v. Industrial Insurance Commission, 91 Wash. 588, 158 Pac. 256, Ann. Cas. 1918B, 354, and cases there cited. If the respondent was a workman, within the meaning of this act, there can be no doubt that her sole redress must be found in the terms of the act. If she had been of the age of 16 years, there could be no reasonable contention that she did not come within the terms of the act. The statute, at section 2447, Rem. Code, provides: "Every person who shall employ, and every parent, guardian or other person having the care, custody or control of such child, who shall permit to be employed, by another, any male child under the age of fourteen years or any female child under the age of sixteen years at any labor whatever, in or in connection with any store, shop, factory, mine or any inside employment not connected with farm or house work, without the written permit thereto of a judge of a superior court of the county wherein such child may live, shall be guilty of a misdemeanor." Respondent's position seems to be that, because it was unlawful for appellant to employ the child under the age of 16 years, she was not confined for redress to the terms of the Workingmen's Compensation Act. Counsel rely principally upon the case of Hillestad v. Industrial Insurance Commission, 80 Wash. 426, 141 Pac. 913, Ann., Cas. 1916B, 789. That was a case where a boy under the age of 14 years was drowned while floating some logs to his father's mill, and where the father sought to recover under the Workingmen's Compensation Act. We held in that case: First, that there was no employment of the boy and he was therefore not a workman; and, second, conceding that the boy was employed by the father, the employment was wrongful and the father could not profit by his own wrong. The question whether the bov might have recovered under the act if he had been injured, instead of drowned, was not before us. We are satisfied that case is not authority for the position of the respondent here. Section 2447, Rem. Code, herein before quoted, makes it a misdemeanor for an employer to employ "any male child under the age of fourteen years or any female child under the age of sixteen years at any labor" in any factory without the written permit of a judge of a superior court of the county wherein such child may live. This statute does not make it unlawful for a child under the prohibited age to work and imposes no penalty upon the child when it does work. It follows that the child neither gains nor loses any rights by such ployment, even though the employer may be penalized. Section 6604–9 of the Workingmen's Compensation Act provides: em time of for the engaged therefor same "If any workman shall be injured * or be, at the the injury, of less than the maximum age prescribed by law employment of a minor in the occupation in which he shall be when injured, the employer shall, within ten days after demand by the department, pay into the accident fund, in addition to the required by section 6604-4 to be paid: "(a) In case the consequent payment to the workman out of the accident fund be a lump sum, a sum equal to fifty per cent. of that amount. "(b) In case the consequent payment to the workman be payable in monthly payments, a sum equal to fifty per cent. of the lump value of such monthly payment, estimated in accordance with the rule stated in section 6604-7." This section plainly recognizes that a child less than the maximum age for the employment of a minor is a workman within the meaning of that act. It follows that whether the child is employed either lawfully or unlawfully such child is entitled to all the privileges of the Workingmen's Compensation Act and must seek its remedies under the terms of that act. The judgment must therefore be reversed, and the action dismissed. Holcomb, C. J., and Mitchell, Fullerton, and Bridges, JJ., concur. ZENOR v. SPOKANE & I. E. R. CO. (No. 15542.) 186 Pacific Reporter 849 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT ABOLISHES COMMON-LAW RIGHT OF ACTION. The common-law right of action for damages accruing from an in jury received by workman in the course of his employment is abolished by the Workmen's Compensation Act (Rem. Code 1915, § 66041), except as in the act otherwise provided. (For other cases, sec Master and Servant, Dec. Dig. § 348.) 2. MASTER AND SERVANT-BRIDGE PART OF “PLANT" OR "PREMISES" OF CITY, WITHIN WORKMEN'S COMPENSA TION ACT. A bridge in a city is a part of the "plant" or "premises" of the city, within the meaning of the Workmen's Compensation Act (Re Code 1915, 6604-3), and a carpenter engaged in repairing a city bridge cannot maintain an action against an electric railway, whose negligence in stringing its wires under the bridge caused injury to him. (For other cases, see Master and Servant, Dec. Dig. § 354.) (For other definitions, see Words and Phrases, First and Series, Plant; Premises.) Second |